27 September 2012

The accident that killed young Alex Fleming, of Woodstock, Ontario, the infant son of Mary Rodrigues and Michael Fleming, was a tragedy for the family and their community. Bonita Purtill, the driver of the pickup that had broadsided their car on October 12, 2008, pleaded not guilty to “impaired driving and criminal negligence in the death of four-month-old Alex Fleming, impaired driving causing bodily harm and criminal negligence to Alex’s mother Mary Rodrigues and refusing to provide a breath sample to police” (Jury selected in Bonita Purtill trial, June 18, 2012).

Purtill received one year for refusing to take the breath test – a criminal offense - to be served consecutively (ie following the sentence for the impaired driving). The shorter sentence was included in the total jail time of 7 years minus time served, leaving 6 years, 8 months (MADD Canada praises Purtill sentence, Sept 20, 2012).

There appeared to be immense relief at Ms Purtill being found guilty, in part because it was an infant that died in the accident, and in part due to attitudes towards the combination of ‘drinking’ and ‘driving’ (Final arguments, different stories, June 28, 2012). Taken separately, each of these activities is legal to engage in, but put them together - as drunk driving - and public tolerance for them changes, possibly largely due to the efforts of MADD (Mothers Against Drunk Drivers).

Random breath testing

According to Andrew Murie, Canada’s CEO for MADD, “more than 100,000 charges related to impaired driving are laid across Canada each year. . . That's the people who get caught,” he said. “So there is a whole bunch of people who don’t. You can do it for a long period of time before you get caught” (MADD Canada praises Purtill sentence, Sept 20, 2012). Mr Murie also reminded readers that MADD Canada was advocating for the law to allow police to demand random breath tests in spot checks; I would add, the idea seems to be to do away with having to show good reason for exerting their authority in this manner.

Intended to save lives and prevent injuries, the random compulsory breath tests, carried out at checkpoints, would increase “the chances of stopping, charging and convicting a drunk driver” (MADD mothers push for random breath testing, May 09, 2012). Thus random breath testing is somewhat different from the RIDE program.

In Ontario, RIDE (Reduce Impaired Driving Everywhere), is described by lawyer Tushar K Pain as including “a provincial spot-check enforcement campaign started in 1977,” in which all cars crossing the checkpoint would be stopped and questioned (Ontario’s Drinking and Driving Laws Often Misunderstood, Sept 18, 2011). After questioning, those drivers seemingly not under the influence would be let go without having to take a breath test. On the other hand, the proposed “random breath test” spot check, Mr Murie of MADD is reported as saying, “would allow police at roadblocks to conduct about three times as many breathalyzer tests because they would not need to spend time determining whether there is “reasonable” suspicion a driver has been drinking” (Canada Contemplates Random Breath Tests, Oct 7, 2009).

Although there is currently a RIDE program in effect in Ontario that nabs impaired drivers, there seems to be more opposition towards the idea of a random, compulsory breath test program than RIDE. I added the word compulsory to the description as I felt it more accurately described what the reluctance was for members of the public in embracing random breath testing. The problem could be about living in a coercive state environment in which one’s right to freedom is being taken away.

One other aspect of the proposed ‘random breath test,’ as I understand it, is that the randomness of the method involves an approach based on luck, eg one in ten car drivers will be tested, rather than RIDE’s method of questioning everyone who gets stopped at the checkpoint but only breathalizing those who fail to convey the impression of being under the limit or who are believed when they say, Only one, officer.

In practice, however, how likely could it be for a driver to say, I’m a doctor and I’m in a hurry, in the random test situation, and being permitted to drive through without being tested? What controls will be set in place, and what loopholes will remain? Who is likely to be most affected? Which kind of breath testing would be fairer to most citizens, regardless of occupation or social status according to make and year of car? For more views on this topic, see in the list following, ‘Debate: Random sobriety tests for drivers.’

Related legal cases

Another local case of driving while impaired is that of Brian Crockett, Crown Attorney of Oxford county, who was arrested in Woodstock Ontario, on charges of impaired driving, on Saturday, Aug 18, 2012. Like Bonita Purtill, Crockett refused to take a breathalizer test. His case is due in court on October 2, 2012 (Crown named in Crockett court case, Sept 11, 2012).

In yet another case, in which impairment due to drinking was at first suspected, suprisingly the accused was not asked to provide a breath sample. The case was that of Michael Bryant, former Attorney-general of Ontario, who was involved in an altercation with a cyclist/courier, Darcy Sheppard, who tragically died that day, August 31, 2009 (Michael Bryant relives deadly encounter with cyclist in ‘28 Seconds,’ Aug 21, 2012).

The police officer responding to the Bryant-Sheppard incident took one look at the severity of the situation and asked Byant how many drinks he had had, but in the end, Bryant was not required to take a breath test. From Macleans magazine, in Bryant’s own words:

“The constable promptly manhandled me around to a spot in front of his squad car. He started pushing and poking me. He said I was in a lot of trouble. He kept asking how much I’d had to drink. In ﬁve different ways, he asked me if I’d imbibed. I told him I didn’t drink alcohol, period. ‘Yeah, okay,’ he scoffed” (The 28 seconds that changed my life, Aug 22, 2012).

Michael Bryant was arrested and charged with dangerous driving causing death and negligence causing death. Several months later, in May, 2010, the charges were withdrawn. In August, 2012, the book Bryant wrote, on the 28 seconds that changed his life, was released (The 28 seconds that changed my life, Aug 22, 2012).

There has been public protest to Bryant’s book and to the way the case was handled (see Michael Bryant book launch sparks protest, Sept 06, 2012). The one who had been drinking in this catastrophe was the cyclist who lost his life, and the one driving was the recovering, though apparently sober alcoholic, making it more difficult to label one side clearly in the wrong and the other side obviously right. Yet that was what was done. Even in death, Sheppard was made to take the blame, while Bryant got off completely, in the legal sense at least.

Drinking and driving – our history and culture

Where there actually is an impaired driver involved in an accident, it is easier to place blame. In other words, it is the alcohol that is being blamed, and the driver for not recognizing its distorting tendencies and impact on the mind before getting behind the steering wheel, although by that time, it’s usually too late. Even the description of a 1976 CBC radio broadcast can remind us how far we have come and yet how nothing really changes (Alcohol: Rethinking the minimum age for drinking, May 2, 1976).

In 2008, there was a move by health officials in London, Ontario, to raise Ontario's legal drinking age to 21, “as part of a series of measures to fight alcohol-related deaths and injuries,” but the suggestion was dismissed by Premier Dalton McGuinty. Ontario had lowered the drinking age from 21 to 18 in 1971, then increased it to age 19 in 1979 following complaints of more high school students getting drunk. McGuinty is quoted as saying, at that time, "If you're going to rely on the law to ensure that your kids aren't drinking underage, then you don't have a good understanding of human nature," he said before a Liberal caucus meeting (Drinking age to stay at 19, Apr 01, 2008).

It is recognized that the highest rates of impaired driving are among young drivers, (Impaired driving and other traffic offences, Nov 7, 2003), who may be testing their own powers as part of becoming adults - finding out what their limits are. Bonita Purtill was the exception rather than the rule – older and female – and managing to get herself into a situation involving the death of a small child.

The emphasis in the Purtill case has been on the law, related to irresponsible drinking and her decision, no matter what prompted her to do so, to get behind the wheel and risk doing harm to others. Purtill did have the opportunity of telling her story, though her credibility, or the facts as she described them, were apparently not accepted by the members of the jury as reasonable (Purtill takes the stand, June 28, 2012).

It is difficult, sometimes, to determine cause/effect relationships. Society changes and we may not always know how the change came about. But one good thing that has occurred since the Purtill accident involving the infant Alex Fleming in the car with his family, has been that child car seat regulations have been updated.

Infant and child car seats

“Injuries related to motor vehicle collisions are the leading cause of injury-related death for Canadian children” (Child passenger safety, Jan 10, 2012). See also the Ministry of Transportation piece ‘Safe & Secure: Choosing the right car seat for your child,’ last modified: June 22, 2012). Using the correct car seat, in the appropriate manner, has been important for our society for many years now, a result of the injuries and deaths involving children and babies in car accidents.

On Dec 29, 2011, it was announced that updated child car seat safety regulations would come into force on January 1, 2012. Minister of Health, Leona Aglukkaq, made the announcement, saying, “When these new regulations come into force on January 1, child car seats sold in Canada will meet Canada's highest testing standards and therefore will be as safe as possible” (Updated child car seat safety, Dec. 29, 2011).

Random testing of car seats has been carried out through the RIDE program in Ontario, for the purpose of ensuring that parents know how to follow the laws and are doing so. (Majority of car seats checked not installed properly: police, Nov 05, 2009). Parents needing advice about infant and child car seats can go to special centres set up for this purpose. Car-seat.Org provides discussion forums and access to resources for concerned parents (Car-seat.Org, since 2001). A local internet group in sw Ontario is Londonmoms.ca (see Car seat checks, since 2000).

Still, the emphasis seems to be on ending impaired driving, for MADD at least, no matter how impossible the task may be of fighting for zero tolerance. The Bonita Purtill case informs us just how tragic such accidents can be, changing the lives of both the victim’s family and the impaired driver (Woman guilty of killing four-month-old while driving drunk, June 29, 2012). Opposition to MADD’s efforts continue, as in internet sites concerned about random sobriety tests and what exactly are other countries doing compared with Canada (More MADD Opinion – Random Breath Tests & Ireland, 2010). In the meantime, taking advantage of advances in technology, medical expertise, and community programs, as in ‘Time to Double Check the Car Seats,’ June 21, 2011, might help mothers and fathers lessen the injuries and fatalities, within their families, from those who drive while impaired.

19 September 2012

Historically, men have been sexually dominant. And their view of women was that they be submissive - not dominant, or independently active.

The subject of Alex Chapman’s sex life has come up again, since first being mentioned in July, 2012, informing us that the man who accused Jack King and wife judge Lori Douglas of sexual harassment was a sex performer who sought paying clients online (Chapman was 'online sex performer,' July 19, 2012; ‘Man at centre of Manitoba naked judge case was a sex performer: lawyer,’ Sept 17, 2012). The reality is that both Chapman and Douglas are ‘sexual performers.’ However, only one of them has been legitimized through historically-approved gender roles. Changes in perceptions of gender roles, not fully accepted across social and workplace boundaries, are at the root of this problem facing the Inquiry panel members, brought together to look into the circumstances of Lori Douglas's application for and acceptance as a Manitoba judge.

If the lawyers for Lori Douglas think that treating Chapman and Douglas the same is a way of avoiding bias, they are sadly mistaken. And if they try to have the inquiry ended for the reason of unfair bias, they are, once again, deluded as to what bias actually means, within the larger context of society, tradition, and sexual gender roles.

In July of this year, 2012, it was thought by two of the Inquiry panel members (Catherine Fraser and Guy Pratte) and by Rocco Galati, Chapman’s lawyer, that introducing Alex Chapman’s sex life into the proceedings would be unfair to him, showing him to have had consensual sexual relations despite disapproving of Lori Douglas’s sexual activities. However, Ms Fraser of the Inquiry panel apparently missed the point of consensual relationships by ignoring the power difference between Chapman, a client of Jack King’s, and the power couple of King and Douglas. It wouldn’t have been mutually consensual, for them to meet for the purpose of sex between Chapman and Douglas, not as long as one had more power than the other. As it turned out, the only power Chapman had, and one that made him fearful, was to take the case of sexual harassment to court.

Lori Douglas’s lawyer, Sheila Block, argued over the same point, saying that including that evidence would lessen the impact of Chapman’s claim that he was "shocked" and "damaged" by King's proposal of sex (Chapman was 'online sex performer,' July 19, 2012).

The problem with this kind of logic, as expressed by Lori Douglas’s lawyer especially, is that judge Lori Douglas and Alex Chapman are being treated as equals by members of the Inquiry panel and the lawyers, with no gender-specific or other differences in their beliefs, sexual conditioning, and social status being acknowledged. Trying to equate the kind of sexual behaviours that Lori Douglas engaged in with the kind that Chapman did doesn’t work. They come steeped in culture, gender-specific traditions, and power differences of various kinds. To start with, the images that distressed Chapman, that Jack King showed him, were of Lori Douglas, “naked in various forms of bondage, in chains, with sex toys and performing oral sex” (Judge sex controversy lawsuit quashed, Nov 16, 2010).

I would argue that Alex Chapman’s background, possibly his Jamaican roots, and his male conditioning, could easily account for his horror at seeing pics of the judge in bondage gear. We might assume that Chapman was a traditional man, raised to treat women in a particular manner, and not used to seeing them as dominant.

Journalist Dean Pritchard reports Chapman’s reaction to Jack King propositioning him to have sex with his wife, Lori Douglas, and to the photos of King’s wife and the website, as follows “It was sadistic stuff. I would never treat a woman like that. They were terrible pictures,” and “I went and checked it out and it was a paid website where there were black men raping white women, at least that's how I interpreted it. . . . I was disgusted by that stuff.” (King ‘messed with my head’, July 16, 2012).

Is it conceivable that a man who performs sexually for women online might hold traditional views of sexuality and gender roles? Certainly it is! Is it also a possibility that a man’s country of origin and his race could also affect his view of authority figures and punishment for going against what is expected of him? Of course! So we have one dominant sexual personality coming up against another, but only one of which is a traditional viewpoint. The other is feminist.

In the National Post’s Full Comment, Christie Blatchford writes about Chapman in a tone that suggests she doesn’t understand what it is like to be afraid of those in authority, of not having backup when needed, from one’s employer or even from one’s country. She ridicules and demeans Alex Chapman in a way that suggests she has no real comprehension of how a person might feel about his powerlessness, or how his very real powerlessness affects his life. She writes, quoting Chapman,

“‘Manitoba’s bench is totally corrupted,’ he said at another point. There were very ‘powerful people and they would make my life miserable,’ he said on a different occasion.”

As stated by journalist Steve Lambert, the five-member panel overseeing the inquiry has to deal with accusations of bias by both sides, a dispute that threatens to end the inquiry (Man at centre of Manitoba naked judge case was a sex performer: lawyer, Sept 17, 2012). But it isn’t Chapman who is on trial. And if his genuine discomfort with the sexually-dominant female has been misunderstood, it may be because he is surrounded by them, in court and in the media, and it may be these very same women who are reluctant to grant him any empathy for the situation in which he found himself.

On this theme, Christie Blatchford opens her story on the apparent contradiction between Alex Chapman’s pornography collection and his lack of desire for the kind of sexual attention Lori Douglas had on offer (Manitoba judge’s accuser no sexual wallflower, but inquiry astonishingly refused to hear about it, Sept 17, 2012). But there is no contradiction. If all pornography were the same, then it wouldn’t have to be continually created, with different scenarios, different women and men, different props, etc. No one can know why he didn’t take up the offer. Perhaps the reason had something to do with the sexual subject being the wife of the lawyer he had taking care of his divorce, his unwillingness to get involved, and his inability to gracefully exit the situation. The consequences of saying No to someone in power can be devastating, as many women know.

Margaret Wente presents her womanly perspective to this dilemma, arguing that “Of course we should hold judges to a higher standard than other people. But judges live in the real world. They even have sex lives. Lori Douglas's only crime was to choose an unstable spouse, and have sex with him (The persecution of Lori Douglas, July 14, 2011). But Margaret, we all live in the real world, and we all have to pay the consequences of our husband’s actions, their midlife crises or if not them, then those of our employers or colleagues, and so on. There is no end to it. You can’t put all the responsibility for this on Lori Douglas’s husband. As soon as they imposed on someone else’s life, they were involved, and partly responsible for the outcome, at least to the extent that they have to live with it. And as judge, Lori Douglas’s future is at stake, regardless of who was at fault, just as so many other women’s futures depend on the actions taken by those with whom they are in relationships.

Previously it has been stated that all the lawyers in her area knew of the circumstances of Lori Douglas’s photos on the internet, the first time she applied to be a judge (Nude photo controversy was 'well-known' in Manitoba's legal community, husband says, July 25, 2012). These are the people she associates with - her colleagues who accept and understand her, and her sexual habits. But why aren’t they able to understand and accept a man who gives the impression of being traditional, and needing to be dominant sexually? And if they cannot understand and empathize, what kind of lawyers and judges are they, while on the job?

Lori Douglas’s lawyers have asked the Federal Court of Canada to halt the inquiry, before it even gets to the real issue – Lori Douglas’s withholding of the facts of the photos online on the official application to become judge, other possibly misleading situations, and whether or not this will affect her future as judge (She had to know: Chapman, July 17, 2012).

5 September 2012

Guy Pratte, the lawyer leading the inquiry into a Manitoba judge, has resigned. Difficulties have arisen over the purpose of the inquiry panel, over whether it is to oversee in a fair manner all sides of the issue, or to examine the testimony and evidence against her; or, as Pratte is reported as saying, “the inquiry committee cannot act as both a referee of the proceedings and an active participant” (Lawyer leading inquiry into Manitoba judge’s nude photos quits after disagreement over questions, Aug 27, 2012).

According to Christine Blatchford, Pratte explained that the problem was Mr MacIntosh, who was “withering in his questions, particularly of Mr. King, and sometimes sarcastic” (Lawyer quits nude judge inquiry, Aug 27, 2012). In the actual news piece on this, however, it isn’t the judge’s husband King who is mentioned as the main victim; rather it is the judge herself (Lawyer leading inquiry intoManitoba judge’s nude photos quits after disagreement over questions, Aug 27, 2012).

A commenter online made suggestions, which seem to be quite appropriate, and probably make more sense than taking this to a judicial review as a general issue about the functioning of the inquiry panel. This is what fg wrote:

“It may be time to close the book on the open-ended overly-broad ‘inquiry’ systems and choose administrative law systems in which fundamental justice features prominently. We need transparency on the appointment of judges and a clear discipline system that sets out a complaint or charge, including exactly how it has breached a specific stated standard. At the moment, we have neither.

Once prosecution witnesses exonerate a judge on some aspect of it, shouldn't that be promptly dropped so other aspects and any remaining complaint or charge can go forward in a clear manner? Shouldn't counsel be able to apply to have it dropped?

The public interest is served by clarity, fairness and fundamental justice. Without these, any decisions will merely be endlessly debated and interpreted on vagaries and innuendo and good law will not develop.

Most Canadians fear going to court because they fear being disregarded, treated with contempt and being overwhelmed by an opaque, confusing unclear system in which money too often seems to triumph over fairness. Canadians want and deserve change.

A pared down hearing with a clear direction and a final decision that answers the question both specifically but also broadly, is required, as case-law is needed here.

In the grand scheme of what must be disclosed in an application to be a judge, I hope the panel creates a specific laundry list of what is always required, even if some other aspects are left open.

Given the known practice of hidden tribunal decisions in Canada, it is fervently hoped that hiding decisions and corruption will make the list, along with being involved in untenable legal conflicts of interest with substantial legal consequences.

We need a legal clean-up in Canada, that will take the process to task, create clarity.

The decision must also protect everyone from being victimized by unscrupulous actors bent on attacking careers.” (fg, in Lawyer quits nude judge inquiry, Aug 27, 2012).

I agree with fg, to a certain extent. This whole matter of the judge has become so complex that one can only wonder if it is intentional to make it so that the ordinary person doesn’t have a chance of understanding the decisions made or why. This latest fiasco was simply a problem of one Mr MacIntosh, a member of the panel whose approach to questioning the judge apparently bordered on harassment, it was that antagonistic supposedly. On the other hand, how are we to know if this impartial member is actually against the judge or subversively on her side, seeking a way to have the entire proceedings dropped? Surely it isn’t in his best interests, as a lawyer, to behave this way towards a judge, no matter what he may feel about her actions. And as a member of the inquiry panel, shouldn’t he know better?

So why isn’t it now Mr MacIntosh who is subject to questioning, and removal from the panel, instead of the panel itself under threat of dismissal and a further legal manoeuvre of a judicial review asked for, to handle the situation.

As others have pointed out, it is odd that the ones who have the responsibility of looking into the matter of the judge Lori Douglas are members of the legal community themselves. Anyone who has tried to get a harassment matter resolved within the university environment knows the futility of engaging in an internal inquiry. The organization itself has the power to manipulate the people involved and the way the incident is understood, in whatever way it chooses. Such internal inquiries surely are next to useless.

For the victims, it is like banging your head against a brick wall – or driving into one. In these most recent pieces about the case, the name of the original victim – Chapman, was it? – the black man – has been left out completely. The case has now been removed a step from the original issue – the questionable behaviour of the judge. The ‘victim’ is now judge Lori Douglas, who has been subjected, ‘allegedly,’ to harsh questioning.

One further matter, suggested by fg, is a “cleanup” of the legal system, or as he says, “We need a legal clean-up in Canada, that will take the process to task, create clarity. The decision must also protect everyone from being victimized by unscrupulous actors.”

It may not always be clear who is getting victimized and whose careers suffer, and if that is the problem in the longterm anyway. Complicate that by having to consider the changing norms of society, in the areas of sex and sexuality, for instance, and how these are related to work and careers, and sorting matters out can be a challenge far beyond the knowledge of members of the legal system. Increasing clarity may not always be possible.

For anyone who has forgotten the original issue, read ‘Lori Douglas is not a victim,’ July 26, 2012. There has been much written between July and the end of August, but this latest problem – of what the judge has had to put up with in the inquiry - is not how the matter started. Let it not end on this note.

About Me

I graduated, as Sue Fulham, from Western University (UWO) in 1993 (HBA Sociology), and went on to do my MA in Sociology at University of Windsor. The title of my thesis was Women in transition: discourses of menopause. . . . . . . . . . . . I did my degrees later on in my life, having graduated in 1965 from Grade 13 at WCI in Woodstock, Ontario - as Susan Fulham - and raising a family - as Susan Herd. . . . . . . . . . . . . I started the blog in 2005, while living in England.